State v. Allen

• Citation: 212 N.J.Super. 276,514 A.2d 879
• Parties: STATE of New Jersey, Plaintiff, v. Bruce D. ALLEN, Defendant.
• Decision Date: 16 June 1986
• Court: Superior Court of New Jersey

Page 276

212 N.J.Super. 276

514 A.2d 879

STATE of New Jersey, Plaintiff, v. Bruce D. ALLEN, Defendant.

Superior Court of New Jersey, Law Division Burlington County.

Decided June 16, 1986.

Terri-Anne Duda, Mount Holly, for plaintiff (Stephen G. Raymond, Burlington County Pros. Atty.).

Robert P. Weishoff, Mount Holly, for defendant (Mathews, Sitzler, Weishoff & Sitzler, Mount Holly, attorneys).

HAINES, A.J.S.C.

Defendant, Bruce Allen, was arrested and charged with driving while intoxicated ("DWI"). He was given two breathalyzer tests which produced consecutive readings of 0.13% and 0.14%. Allen claimed that his blood alcohol content at the time of the arrest was less than the statutorily mandated minimum reading of 0.10%. N.J.S.A. 39:4-50(a). He was prepared to produce expert testimony in support of this claim.

Allen was subject to the ruling in State v. Tischio, 208 N.J.Super. 343, 506 A.2d 14 (App.Div.1986), certif. den. --- N.J. --- (1986), which involved a defendant charged with DWI whose breathalyzer reading was 0.11%. Defendant, Tischio, argued that "it was necessary for the State to introduce evidence through an officer or independent expert to prove ... [his] blood alcohol level at the critical time of operation." Id. at 346-347, 506 A.2d 14. The court held:

The statute reflects a simple legislative plan to establish a violation where the administration of the breathalyzer or other established tests for determining blood alcohol content produces a reading of .10 percent blood alcohol or greater at any time after operation so long as there has been no ingestion of alcohol between the time of operation and the time of testing. Further proof of the issue of the blood alcohol level at the time of operation is unnecessary. [Id. at 347, 506 A.2d 14]

The court did not deny the admissibility of expert defense testimony extrapolating the breathalyzer readings to prove blood alcohol level at the time of driving. It simply denied any obligation on the part of the State to produce such testimony.

Tischio has been widely misread. Municipal court judges are refusing to permit expert extrapolation testimony in DWI cases because they interpret Tischio as denying its admissibility. (Six appeals from such rulings are now pending in this court.) Such is the case here. Defendant, who was prepared to offer such expert testimony, made a pretrial motion in the municipal court requesting a ruling on his right to do so. The court held that the expert would not be permitted to testify. An interlocutory appeal followed. This opinion holds that Tischio does not bar the proposed expert testimony and reverses the ruling below. ¹

No doubt some misinterpretation of Tischio resulted from the following statements in the Appellate Division's opinion:

If defendant's position was accepted and the violation construed to obtain only where the blood alcohol reading could be extrapolated to show that there was a .10 percent or greater blood alcohol concentration at the time of operation an anomalous result would occur. An operator who had imbibed sufficient alcohol to result in a blood alcohol concentration above the statutory limit could not be convicted if apprehended prior to the blood alcohol concentration passing that level, even though its occurrence is assured. How much further down the road one may drive after drinking before the operation becomes unlawful would vary from driver to driver, but in the meantime all who consume enough alcohol would sit as moving time bombs which could not be disarmed because the offending alcohol has not yet been sufficiently concentrated in the blood.

....

The law was not intended to encourage a perilous race to reach one's destination, whether it be home or the next bar, before the blood alcohol concentration reaches the prohibited level. [208 N.J.Super. at 347-348, 506 A.2d 14] The only issue raised in Tischio involved the State's burden of proof: Was it required to extrapolate the breathalyzer evidence in order to prove that defendant had a 0.10% or greater blood alcohol content when he was driving? The court held that the State did not have that burden. Its "time bomb" commentary was gratuitous--unnecessary to the decision of the issue raised in the appeal. It is therefore dicta and not binding here. Jamouneau v. Div. of Tax Appeals, 2 N.J. 325, 66 A.2d 534 (1949), defines the term:

The statement in the ... opinion ... was made specifically with respect to the situation there under discussion and is not to be understood as the pronouncement of a general principle. If the expression was intended for wider application, it is to be classed as judicial dictum because it was not necessary to the decision then being made; as such it is entitled to due consideration but does not invoke the principle of stare decisis. [at 332, 66 A.2d 534]

The difficulty with dicta is explained in Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118 (1944):

It is timely again to remind counsel that words of our opinions are to be read in the light of the facts of the case under discussion. To keep opinions within reasonable bounds precludes writing into them every limitation or variation which might be suggested by the circumstances of cases not before the Court. General expressions transposed to other facts are often misleading. [323 U.S. at 132, 65 S.Ct. 165]

If the dicta in Tischio had been adopted by our Supreme Court, it would be entitled to "great weight." Lehigh Valley R.R. Co. v. Chapman, 35 N.J. 177, 187, 171 A.2d 653 (1961). The denial of certification, however, was not an adoption of the Tischio language. No case has been found which establishes any rule of deference to dicta by the Appellate Division. The statement in Jamouneau, for example, though broad enough to cover intermediate appellate courts, refers to an opinion of the former Court of Errors and Appeals, a court of last resort. Nevertheless, the Appellate Division, to which most appeals from trial courts are taken, renders decisions which are binding on those courts. Its dicta must be given respectful and conscientious consideration in view of its recognized high competence as well as its position in the judicial hierarchy.

The consideration to be given the Tischio dicta does not make that dicta conclusive. Were it otherwise, dicta would be law. Irrelevant comments of upper courts, unrelated to the subject at hand, would "invoke the rule of stare decisis." But that is not the rule; dicta, if carefully weighed and found wanting, does not control. It is the weighing process that provides the respect to which all such dicta is entitled. Tischio's dicta, written in response to an issue not before the Tischio court but now before this one, is weighed here and is found wanting. That weighing consists of an analysis of the DWI statutory scheme and its history.

N.J.S.A. 39:4-50.1 made the 0.10% breathalyzer reading presumptive, saying:

In any prosecution for a violation of R.S. 39:4-50 relating to driving a vehicle while under the influence of intoxicating liquor, the amount of alcohol in the defendant's blood at the time alleged as shown by chemical analysis of the defendant's ... breath ... shall give rise to the following presumptions:

....

(3) If there was at that time 0.10 percent or more by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was under the influence of intoxicating liquor. [Emphasis supplied]

In 1983 paragraph (3) was deleted and the following related proviso inserted in N.J.S.A. 39:4-50:

(a) A person who operates a motor vehicle while under the influence of intoxicating liquor ... or operates a vehicle with a blood alcohol concentration of 0.10% or more by weight of alcohol in the defendant's blood shall be subject [to penalties]. [Emphasis supplied]

The committee statement annexed to the 1983 amendatory legislation says:

The bill, in its substitute form, requires a person whose blood alcohol concentration is 0.10% or greater be considered guilty of driving while intoxicated. Current law merely creates a presumption that such a person was under the influence of intoxicating liquor. The Attorney General's office has proposed the language incorporated in the substitute.

This statement leaves open the question of when the 0.10% concentration must exist. It could be interpreted by a willing reader as justifying the Tischio dicta. That interpretation, however, would ignore the language of the DWI statutes as well as the fact that the statement says nothing about time of testing versus time of driving. It was not an interpretation upon which Tischio relied.

Tischio, in fact, makes no analysis of the legislation except to say that defendant's "interpretation is within the literal terms of the statute." 208 N.J.Super. at 347, 506 A.2d 14. The opinion also refers to the "simple...